High Court awards costs to applicant where respondent's unilateral decision to withdraw contract renders proceedings moot.
Ireland (IE)
Legislator summary
AI generatedThe High Court awarded costs to the applicant because the respondent's unilateral decision to withdraw the contract rendered the proceedings moot. The respondent argued that the litigation caused a stay preventing contract award within the tender timeline, but the court found the withdrawal was a discretionary choice within the respondent's control. Consequently, the court held that the respondent should bear the costs of the now-moot proceedings.
Legislator headnote
AI generatedRegulations 2010; Order 84A: Where a respondent unilaterally withdraws a contract award following litigation, rendering proceedings moot, the respondent bears the applicant's costs as the withdrawal was a discretionary act within their control.
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[2019] IEHC 141
THE HIGH COURT
2018 No. 302 JR
IN THE MATTER OF THE REVIEW OF THE AWARD OF A PUBLIC CONTRACT PURSUANT TO THE EUROPEAN COMMUNITIES
(PUBLIC AUTHORITIES’ CONTRACTS) (REVIEW PROCEDURES) REGULATIONS 2010 (AS AMENDED) AND ORDER 84A OF THE
RULES OF THE SUPERIOR COURTS (AS AMENDED)
Between:
KPW BUSINESS FORMS LIMITED
T/A KPW PRINT MANAGEMENT
Applicant
– and –
STATE EXAMINATIONS COMMISSION
Respondent
JUDGMENT of Mr Justice Max Barrett delivered on 5th March, 2019.
1. This is an application for costs made in now moot proceedings concerning a competition for the award of a contract relating to the
operation of Ireland’s second-level examinations. Following the commencement of these proceedings, the SEC, consistent with the
RFT, took the decision not to award that contract. So the proceedings became moot because the SEC unilaterally decided not to
award the contract. As to the rationale for this last decision, SEC’s CEO has averred that “[T]hese Proceedings…brought an
automatic stay on the procurement process. That stay in place the Respondent was unable to award the…contract to the
successful bidder. That stay might have been challenged, but that…would have taken time, and…would not have allowed time
enough to implement the…[proposed] system in 2018….Moreover, there was no certainty that the stay would be lifted…or that [a]
…decision to lift… would go without appeal”.
2. In determining this application, the court brings to bear various of the precepts identified, by reference to applicable Supreme
Court case-law, in MKIA v. IPAT [2018] IEHC 134:
(1) Is there an event to which the general rule as to costs should be applied? Yes, being the SEC’s unilateral decision not
to award the contract, rendering these proceedings moot.
(2) Is the event caused by the applicant’s proceedings? Yes. Were it not for these proceedings the event would not have
occurred.
(3) Are the proceedings moot due to a factor outside the control of either party? (4) Are the proceedings moot due to a
factor which is within the control of one party but which has no causal nexus with the proceedings? No to both. The
proceedings are moot due to the unilateral decision of the SEC not to award the contract (a) in circumstances where it
could have arrived at an alternative decision (it could have come to court, albeit that it was free also to take the decision
that it did), and (b) in the context of a tendering process, the relatively constrained timeframe of which was entirely of
the SEC’s design.
(5) Are the proceedings moot due to a factor within the control of one party that does have a causal nexus with the
proceedings? Yes, for the reason offered in answer to (3) and (4).
3. Having regard to the foregoing, the court will make an order of costs in favour of KPW.